Global Governance vs. the Liberal Democratic Nation State: What Is the Best Regime?: Part Two of Four

by JOHN FONTEJune 17, 2008

The Response of the American Governing Center-Left to the Transnational Challenge

As noted earlier the activist American left (NGOs such as Human Rights Watch and Amnesty International USA, foundations such as Ford and Mott) embrace a rather radical form of transnational progressivism often remote from the American mainstream. But what of the governing American center-Left? By the governing center-Left I mean the views of policy makers who serve as political appointees in administrations, such as deputy secretaries of state and assistant secretaries of defense (figures like Strobe Talbott, Anne-Marie Slaughter and Harold Koh), as opposed to "theoretical left" academics, such as Martha Nussbaum at the University of Chicago.

Overall, the American governing center-Left is intellectually prepared to deal with transnational governance conceptually and rhetorically. In essence, the governing left has internalized the global governance project as America's "leadership" mission. However, in promoting this "leadership role" the governing left has blurred the boundaries between our constitutional democratic order and post-constitutional supranational governance, while at the same time obfuscating the distinction in foreign policy between traditional American leadership within an inter-national system versus an American "leadership" that translates into acquiescence to a transnational system with its concomitant surrender of democratic sovereignty.

Strobe Talbott clarifies this mindset best. In a memo to Bill Clinton shortly before the 1992 election the future deputy Secretary of State wrote:

"Americans are all for having the Japanese and West Europeans pony up to pay for the Gulf War, but they are mighty chary about any arrangement that smacks of pooled national sovereignty or authority. The way to counter this resistance, of course, is to sell multilateralism as not just an economic imperative but as a means of preserving and enhancing American political leadership in the world, since the various multilateral outfits will be effective only if the US does lead them."

The concept of "pooled" or "shared national sovereignty" is central to the thinking of the transnational elites who are promoting global governance. This is an idea we will be hearing about over and again in the decades to come. Talbott's endorsement of the principle of "shared sovereignty" suggests that his interpretation of "multilateralism" is, in effect, a means of fostering transnational authority.

Dean of the Woodrow Wilson School of International and Public Affairs at Princeton University Anne-Marie Slaughter could be described as the "John Bolton of the left." She would in all likelihoodbe appointed to a top foreign policy post in a future left-of-center administration. Slaughter has envisioned a system of global governance based on "trans-governmental networks."

Slaughter argues that nation-states should cede a degree of sovereignty to transnational networks "horizontally" and supranational institutions "vertically." Horizontally, means, for example, that American judges would interact with foreign judges, quote each other's opinions, and develop joint legal doctrine (what she calls "transjudicialism"). Vertically, she argues that nations should cede sovereign authority to supranational institutions in cases requiring global solutions to global problems, such as the International Criminal Court. In this way, Slaughter maintains that global government networks "can perform many of the functions of a world government - legislation, administration, and adjudication-without the form," thereby, creating a genuine global rule of law.

Harold Koh, the dean of Yale University Law School, served as assistant secretary of state for democracy, human rights, and labor during the Clinton Administration. In a detailed article in the Stanford Law Review responding to the Bush foreign policy, Koh articulates the central viewpoint of the American governing Left.

Koh chastises the U.S. for failing to "obey global norms." America, Koh tells us, "promotes double standards" by refusing to ratify the International Criminal Court treaty; "claiming a Second Amendment exclusion from a proposed global ban on the illicit transfer of small arms and light weapons"; and "declining to implement the orders of the International Court of Justice with regard to the death penalty." Indeed, Koh complains: "The World Court finally found that the United States had violated the Vienna Convention" (on the death penalty), but "American courts have essentially ignored" the ruling of the ICJ.

Koh's proposed remedy to American exceptionalism is for "American lawyers, scholars and activists" to "trigger a transnational legal process," of "transnational interactions" that will "generate legal interpretations that can in turn be internalized into the domestic law of even resistant nation-states." For example, Koh suggests that, "human rights advocates" should litigate "not just in domestic courts, but simultaneously before foreign and international arenas." Moreover, they should encourage foreign governments (such as Mexico) and transnational NGOs to challenge the U.S. on the death penalty and other human rights issues.

Supporters of the International Criminal Court should, Koh recommends, "provoke interactions between the United States government and the ICC" that might lead to the US becoming enmeshed in the ICC process (by, for example, having the US provide evidence in ICC trials). These interactions with the ICC would show cooperation with the tribunal and therefore "could be used to undermine" the official US "unsigning" of the treaty because it might "constitute a de-facto repudiation" of the "act of unsignature."

Of course, the "transnational legal process," advocated by Koh (and others in the governing center-left) is a process outside of American constitutional democracy. The American people have a Constitution, judicial institutions, and a democratic political system. Transnational "interactions" (such as appealing to foreign courts) are not part of the institutional authority and accountability inherent in the meaning of the phrase: "We the People of the United States." Koh's "interactions" are something "outside" of the "People of the United States" and "beyond" the Constitution and our democratic process. Therefore, they could be characterized as extra-constitutional, post-constitutional, or post-democratic. In effect, they seek to achieve results that could not necessarily be achieved through the regular process of American democracy. This clearly raises the core "regime" questions of what constitutes legitimate political authority and who is responsible to whom in a democratic state.

Part Three will continue with the discussion of the center-Right and transnational progressivism.

John Fonte is the senior fellow and director of the Center for American Common Culture at the Hudson Institute.

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